28 Sep 2010

Holding that it was the responsibility of the Municipal Corporation to keep the town clear of stray dogs and since this was not done in view of the fact that a school boy suffered from dog-bite, the High Court of Himachal Pradesh in a recently reported decision [Court on its own motion v. State of Himachal Pradesh, AIR 2010 NOC 866] directed the Municipal Corporation to pay compensation to the boy. Observing that the law to this regard was well settled and that compensation was payable for failure to carry out the statutory duty, the High Court also went on to pass directions to be observed by the Muncipal Corporation in this regard.

The High Court noted inter alia as under;

Mr. Shrawan Dogra has argued that the thrust of the Municipal Corporation is to sterilize the dogs to control their population and steps have been taken to provide temporary Shelters to the dogs. The steps being taken by the Municipal Corporation, Shimla are laudable. However, the fact of the matter is that the Municipal Corporation, Shimla has to play very important role as per the provisions of the Animal Birth Control (Dogs) Rules, 2001. It is the primary duty of the Municipal Corporation, Shimla to constitute a Committee as per Rule 4 and the functions of the committee are stipulated, as noticed above, in Rule 5. It is an obligation of the Municipal Corporation to establish sufficient number of Dogs’ Pounds, including Kennels/ Shelters to be managed by Animal Welfare Organizations and also to provide requisite number of dogs’ Vans with ramps for the capture and transportation of street dogs, one driver and two trained dog captures are to be provided for each dog Van and an Ambulance-Cum-Clinical Van is to be provided as Mobile Center for sterilization and immunization. It is also the duty cast upon the Municipal Corporation as per Sub-rule (2) of Rule 6 to sterilize and immunize street dogs with the participation of Animal Welfare Originations/Private individuals and the local authority. The method of capturing/sterilization has been provided under Rule 7. Till date, the Municipal Corporation, Shimla has not established sufficient number of Dogs’ Pounds, including Kennels/Shelters. The Corporation cannot take plea that it does not have the funds. The funds are to be raised by the Municipal Corporation, Shimla as per the Municipal Corporation Act, 1994. Even as per the Animal Birth Control Programme (For Stray Dogs), the Municipal Corporation is required to provide land buildings for ABC centre, dog catching vans, free water and electricity at the buildings, an ambulance-cum-clinical van and incinerators. The NGOs are also required to reimburse the expenses of sterilization/immunization by the Municipal Corporation at a rate fixed by the Monitoring Committee.

In view of the rule position discussed hereinabove, it is the duty cast upon the Municipal Corporation, Shimla to ensure that Shimla town is kept free from stray dogs. We do not approve half-heartedly attempts made by the Municipal Corporation, Shimla to control the menace of stray dogs. The stray dogs roam in streets of Shimla town in packs. There is consistent threat to large section of society. They tend to destroy the ambience of town. The tourists come to Shimla not to be harassed by the stray dogs. The menace of the dogs has also not been controlled by the Municipal Corporation, Shimla even on prestigious roads like, Mall Road, Ridge etc. The dogs besides being nuisance are also eye sore since some of them are afflicted with skin disease.

xxx

A school going boy was bitten by stray dogs. He was bitten at 12.30 noon. The boy received injuries on head, stomach, back and legs. He was saved by local people from the clutches of dogs as per news item. Thereafter he was taken to Indira Gandhi Medical College and Hospital, Shimla. He had to be admitted in a hospital and was provided necessary medical aid. He also remained under trauma and agony after bitten by stray dogs. In case the respondent-corporation had taken necessary precautions, this incident could be avoided. Mr. Rajeev Jiwan has also brought to the notice of the Court a similar incident whereby another student was bitten by a stray dog. It is in these circumstances, we hold the Municipal Corporation, Shimla responsible for not taking preventive measure to check the menace caused by stray dogs. The functions enshrined under the Law are required to be discharged by all the statutory authorities.

We had directed the Municipal Corporation, Shimla to deposit a sum of Rs. 1 lac after a boy was beaten by stray dogs. Mr. Shrawan Dogra has argued that the boy has not approached this Court and consequently, no compensation can be awarded to him. This question is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Chairman, Railway Board and others versus Chandrima Das (Mrs) and others, (2000) 2 SCC 564. Their Lordships have held as under:

“11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the Civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law.”

Consequently, we held that the boy is entitled to compensation of Rs. 1 lac on account of negligence on the part of Municipal Corporation, Shimla to control menace of stray dogs. The boy required prolonged treatment and was traumatized and agonized after being bitten by stray dogs.

Accordingly, in view of the observations made hereinabove, the present petition is disposed of by issuing the following mandatory directions:

1. We direct respondent No.2- Municipal Corporation, Shimla to ensure that the Shimla town is made free from stray dogs within a further period of six months.

2. The Commissioner, Municipal Corporation, Shimla shall be personally liable to implement direction No. 1. Appropriate proceedings will be initiated against him, if he fails to implement direction No. 1 in letter and spirit.

3. Respondent No. 2 is directed to provide dogs’ Pounds/Shelters/Kennels within a period of six months from today. Respondent No.2 is further directed to ensure that all the stray dogs in Shimla town are sterilized as per the procedure.

4. Respondent No. 1 is directed to provide necessary funds as indicated hereinabove, for the purpose of establishment of dogs’ Pounds/Shelters/Kennels within a period of one month from today.

5. A sum of Rs. 1 lac deposited in the Registry of this Court is directed to be released in favour of Master Arnav Mazta son of sh. Yashwant Mazta resident of Padam Niwas, Dhingu Bawdi, Sanjauli, Shimla within a period of three weeks from today. This amount shall be kept in fix deposit till the boy attains the age of majority.

The High Court had taken suo motu notice of the incident based upon a newspaper report and the reason for such action was described in the following terms;

The association of dog with the man is well known fact. Stray dogs tend to live in groups in aparticular locality. They are familiar with their surroundings and they know how to find out the food in a particular locality. Of late, the behaviour ofstray dogs has become very aggressive. There are instances of frequentdogs biting. The young children and women are primarily attacked/bitten by the stray dogs. The price of vaccination after dog bite is time consuming and expensive. The Court can take judicial notice of the factthat some of the persons cannot afford the treatment.

In a recently reported decision [Bharat Sanchar Nigam Ltd. v. Telephone Cables Ltd., AIR 2010 SC 2671] the Supreme Court of India has acknowledged that governmental companies are vulnerable to litigation. Taking notice of the factors which require the government companies to incur more than rationale expenditure and incurring such responsibilities and liabilities which come in the way of competing with those in the private sector, the Supreme Court went only to pose issues required to be dealt within providing any answers.

The Supreme Court on this note observed as under;

24. The second issue relates to the vulnerable position of public undertakings. More and more they are subjected to vexatious litigations and other travails which their competitors in the private sector do not normally face. When public undertakings used to have monopoly and discharged public duties, control by the government and legislature and judicial review by the Judiciary was an absolute necessity to safeguard public interest and ensure transparency and accountability. But when public undertakings are required to compete with private sector, in commercial areas, controls by the executive and legislature (sometimes referred to as political bondage) and judicial review of their action, became a handicap which impedes their progress. A public undertaking is required to ensure fairness, non-discrimination and non-arbitrariness in their dealings and decision making process. Their action is open to judicial review and scrutiny under the Right to Information Act, 2005. They are required to take out advertisements and undergo elaborate and time-consuming selection processes, whether it is purchase of materials or engaging of contractors or making appointments. Just to ensure that everyone is given a fair and equal opportunity, public undertakings are required to spend huge amounts and enormous time in elaborate tender processes. A proposal for a purchase of the value of Rupees Ten lakhs may involve a `material procurement expenditure' of Rupees Two Lakhs in advertisements and tender evaluation cost, and a total tender process period ranging from three to six months. A competing private undertaking can go straight into market and negotiate directly and get the same material for Rupees five lakhs without any expenditure in a week. Public undertakings to avoid being accused of malafides, bias or arbitrariness spend most of their time and energy in covering their back rather than in achieving development and progress. When courts grant stay, the entire projects or business ventures stand still or get delayed. Even if ultimately the stay is vacated and the complaint is rejected as false, the damage is done as there is enormous loss to the public undertaking in terms of time and increase in costs. The private sector is not open to such scrutiny by courts. When the public sector is tied down by litigations and controls, the private sector quietly steals a march, many a time at the cost of the public sector. We are not advocating less of judicial review. We are only pointing out that if the public sector has to survive and thrive, they should be provided a level playing field. How and when and by whom is the question for which answers have to be found. Be that as it may.

27 Sep 2010

Two recent decisions of the Delhi High Court aptly summarize the view of the judiciary towards those who fail to secure the minimum specified levels of attendance and thereafter rush to courts for relief. The author, personally having seen the trend of those who skip classes and then rush to the courts for interim relief so as to appear in exams, is in full agreement with the ratio of these decisions. The High Court, discouraging the courts being turned into an instrumentality to frustrate the morale of those diligently attending the classes, in stern and no uncertain terms declared that the minimum attendance has to be observed by the students.

19. There is no royal road to education. Absenteeism has become chronic in the present day and it has to be cured by making the students realize that education teaches only those in attendance. Students take admissions in various courses and they are required to fulfill the laid down attendance norms of each University/college or institution. No doubt that because of youthful age, students sometimes do bunk classes or even sometimes due to certain exigencies, medical or otherwise, are not able to attend the classes, but for that the provision of abstaining from 25% in over all subjects and 35% in the core subjects has already been made by the respondent institute. Further provision of relaxation has already been made if a student is short of attendance in modular subject/non-core subject if due to medical or other unavoidable reasons the student has not been able to attend his/her classes. The courses in the cases hand are no doubt related to Fashion but the legal proposition as set out is similar to the case of Kiran Kumari Vs. Delhi University & Ors in W.P. (C) No. 9143/2007 where the Hon’ble division Bench of this court was confronted with a case where the students of LLB course in the Delhi University, where the minimum attendance required is 66% overall and subject wise as well, were short of attendance. This court observed that:

“In maters relating to academics and standards of education, the Court would show deference to the opinion of the academicians unless a case of patent perversity is made out by the petitioners. The present is not, however, one such case where the requirement of the rule can be said to be so perverse or irrational as to call for the intervention of this Court. As a matter of fact, the minimum percentage of lectures having been fixed at 66%, still gives to the students freedom to miss or abstain from 34% of the such lectures. That is a fairly large percentage of lectures which a student may miss for a variety of reasons including sickness or such other reasons beyond his control. No student can however claim that apart from 34% lectures which he is entitled to miss even without a cause the shortage to make up 66% should be condoned if he shows good cause for the same.”

The Apex court has time and again held that misplaced sympathy should not lead to granting relief to the students in academic matters. It would be useful to refer to the recent judgment of the Apex Court in the case of Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh v. Vaibhav Singh Chauhan,(2009) 1 SCC 59, where it observed that:

“Before parting with this case, we would like to refer to the decisions of this Court which has repeatedly held that the High Court should not ordinarily interfere with the orders passed in educational matters by domestic tribunals set up by educational institutions vide Board of High School & Intermediate Education v. Bagleshwar Prasad6 (vide AIR para 12), J.P. Kulshrestha (Dr.) v. Allahabad University7 (vide SCC para 17 : AIR para 17), Rajendra Prasad Mathur v. Karnataka University8 (vide SCC para 7 : AIR para 7). We wish to reiterate the view taken in the above decisions, and further state that the High Courts should not ordinarily interfere with the functioning and orders of the educational authorities unless there is clear violation of some statutory rule or legal principle. Also, there must be strict purity in the examinations of educational institutions and no sympathy or leniency should be shown to candidates who resort to unfair means in the examinations.”

Hence, on the touchstone of the above said principles, there can be no compromise with the said conditions laid down by the respondent in their attendance policy. Moreover it is not the case of the petitioners that the said policy is arbitrary or irrational and should be struck down by the Court. This Court can be sympathetic with these students, but the sympathy and emotions cannot override the academic standards set out in the policy of the respondent, which the students were well versed with.

Thus the High Court made it clear that it would not come to the rescue of those who do not fulfill their part of obligations. The second decision, however, takes note the humane understanding one has to always retain. On this count, the same judge in Vandana Kandari v. University of Delhi (2010) 170 DLT 755 declared that the stern attitude against avoiding classes was required to be relaxed where the reason for non-attendance was genuine. On this count, the High Court relaxed the attendance conditions for those who misses classes on account of pregnancy. The High Court noted these considerations in the following terms;

51. However, the Directive Principles of State Policy contained in Part IV of the Constitution of India, under Article 41 requires the State to make effective provision for securing the right to work and to education and Article 42 requires that the State shall make provision for securing just and humane conditions of work and for maternity relief. Mr. R.K Saini, counsel appearing for these petitioners placed reliance on the judgment of the Apex Court in the case of MCD vs. Female Workers (supra) and it would be worthwhile to reproduce the relevant para of the said judgment here:

“Since Article 42 specifically speaks of "just and humane conditions of work" and "maternity relief, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of. xxx

A just social order can be achieved only when inequalities are obliterated and everyone is provided what, is legally due. When who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear, of being victimised for forced absence during the pre or post-natal period.”

52. Article 15(3) empowers the State to make special provisions for women. Women constitute 50% of the country's population and without making education a reality for them, fundamental rights shall remain beyond the reach of a large majority of population of this country which is illiterate. The Supreme Court in a catena of judgments has held that right to education is implicit in right to life and personal liberty guaranteed by Article 21 and now with the Right to Education Act in force, education cannot be kept outside the reach of any citizen. Education is the greatest leveler of all inequalities and only if women are given equal opportunity for education they can stand on an equal footing with men.

53. Of all the rights of women, to be a mother is the greatest. Long ago, the Universal Declaration of Human Rights, by Article 25 had declared that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Article 25(2) provides that:

2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

54. It would, while on the topic, also be essential to refer to the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW). The Vienna Convention on the Elimination of all forms of Discrimination Against Women was ratified by the U.N.O. on December 18, 1979. The Government of India who was an active participant to CEDAW ratified it on June 19, 1993 and acceded to CEDAW on August 8, 1993 with reservation on Articles 5(e) 16(1) 16(2) and 29 thereof. The Preamble of CEDAW reiterates that discrimination against women, violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes it more difficult for the full development of potentialities of women in the service of their countries and of humanity. It would be pertinent to quote the relevant provisions here:

11(2). In order to prevent discrimination against women on the ground of marriage or maternity and to ensure their effective right to work, states parties shall take appropriate measures;

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of martial status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

In the case of Madhu Kishwar & Ors. vs. State of Bihar & Ors. (1996) 5 SCC 125, the Apex court held that though the Directive Principles and Fundamental Rights provide the matrix for development of human personality and elimination of discrimination, these conventions (CEDAW) add urgency and teeth for immediate implementation. Hence, it is this court which has been enjoined upon the duty to put life into the provisions of these international conventions.

55. At this stage, it would also be significant to mention the case of Air India vs. Nergesh Mirza (1981)4 SCC 335 where the Apex Court was confronted with the constitutional validity of Regulation 46(i) (c) of Air India Employees' Services Regulations which provided that the services of the Air Hostesses would stand terminated on first pregnancy. It would be pertinent to quote the relevant para of the said judgment here:

“Having taken the AH in service and after having utilised her services for four years, to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. It seems to us that the termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood the most sacrosanct and cherised institution. We are constrained to observe that such a course of action is extremely detestable and adhorrent to the notions of a civilised society. Apart from being grossly unethical, it smacks of a deep rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the Constitution. In Sharron A. Frontiero v. Filliot L. Richardson 36 L. Ed. 2d 583 the following observations were made:

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility. What is said about the fair sex by Judges fully applies to a pregnant woman because pregnancy also is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction therefore, made on the ground of pregnancy cannot but be held to be extremely arbitrary”.

56. In the light of the above discussion, if any female candidate is deprived or detained in any of the semester just on the ground that she could not attend classes being in the advanced stage of pregnancy or due to the delivery of the child, then such an act on the part of any of the university or college would not only be completely in negation of the conscience of the Constitution of India but also of the women rights and gender equality this nation has long been striving for. It is a saying that “Motherhood is priced of God, at price no man may dare to lessen or misunderstand”. By not granting these students relaxation, we will be making motherhood a crime which no civilized democracy in the history of mankind has ever done or will ever do. We cannot make them pay the price for the glory that is motherhood.

57. It would not be inappropriate to mention at this juncture the recent rulings of the Apex Court in the cases of Lata Singh vs. State Of U.P AIR 2006 SC 2522 and S. Khushboo vs. Kanniamal & Anr where it has given liberty to the live-in relationship from the shackles of being an offence and also in the latter case where it has held that premarital sex is not an offence. The society today is changing at a rapid pace and we must be in tune with the realities and not hold on to archaic social mores. Once such a right, however unpopular, is recognized then it cannot be ruled out that there can be more cases of girl students proceeding on maternity leave when while they are still in college. Law should be an instrument of social change and not a defender of it. Motherhood is not a medical condition but a promise. We all kowtow to our mothers to whom we owe our existence and to punish a woman for becoming a mother would surely be the mother of all ironies.

58. Hence, a female student cannot be deprived from her student status or can be detained in any semester on account of the fact that she could not attend the classes because of her pregnancy and therefore so far these two students in are concerned, they deserve relaxation under the mandate of the Constitution.

We have written often on this blog about decisions and concepts which require a decision making authority (either in executive and administrative capacity or a judicial one) to provide reasons for the decision to be given. Like we earlier wrote aboutReasoning being essential in every decision, and that it forms a part of theGuidelines for writing judgments. Despite having stated such, we cannot resist writing about a recent decision [M/s. Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan] of the Supreme Court which serves as an essay on the requirement to provide reasons in every decision.

The Bench extensively examined the growth of law on this proposition and the earlier decision, both from the English Courts as well of the Supreme Court itself, in such detail that even the blog template refused to accommodate all of the text. Thus we have no option but to run only the principles summarized in the decision while without doubt recommending our readers to have a look at the decision (relevant at para 15-51).

The decision succinctly summarizes the principles in the following terms (paragraph 55);

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of its conclusions.

c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial accountability and transparency.

k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision making process.

m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.

o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “Due Process”.

26 Sep 2010

The law of evidence requires credibility of witness and the evidence against the accused to be unimpeachable so as to convict the accused. In this scenario often the evidence is discredited on the ground that the witness is interested i.e. there are reasons extrenaous to the trail for the witness to lead in this evidence and the evidence so tendered may not be free from bias. However in a recent decision [Myladimmal Surendran v. State of Kerala] the Supreme Court has declared that the mere fact that the person giving the evidence is the wife of the deceased it not sufficient to hold that the witness is an 'interested witness' to as to reduce the credibility of the evidence.

The Bench explained the law inter alia in the following terms;

27. In our opinion, the evidence given by the wife of the deceased in this case was unimpeachable. It could not be discarded, as stated by the learned senior counsel on the basis that she was an interested witness. If such a wide proposition was to be accepted the evidence of all the witnesses who were relatives of a victim of a violent crime would be rendered unacceptable. Merely because PW1 happens to be the wife of the deceased would not justify her being branded as an interested witnesses. The evidence of the wife is followed by the consistent evidence given by PW2 and PW3. This is further corroborated by the dying declaration made by the injured within minutes of being assaulted. In such circumstances, it would be difficult to accept the submissions of the learned senior counsel that the evidence of the eye-witnesses ought to be disbelieved.

28. In our opinion, the High Court rightly rejected the submission, which was also reiterated before us, that the evidence of PW2 and PW3 should be rejected on the ground that they were chance as well as the partisan witnesses.

29. We may at this stage notice the observations made by this Court in the case of State of Rajasthan Vs. Smt. Kalki and Another [(1981) 2 SCC 752] which is as under:-

“True, it is she is the wife of the deceased, but she cannot be called an ‘interested’ witness. She is related to the deceased. ‘Related’ is not equivalent to ‘interested’. A witness may be called ‘interested’ only when he or she derives some benefit from the result of a litigation; in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be ‘interested’ in the instant case PW1 had no interest in protecting the real culprit, and falsely implicating the respondents.”

30. In our opinion, the aforesaid observations are fully applicable to the evidence of the PW1 in this case. Similarly, the evidence of PW2 and PW3 cannot be brushed aside as chance witnesses. It has come in evidence that the deceased was the LIC agent. PW2 wanted to take a loan from the LIC for construction of his house. He, therefore, went to meet the deceased at his house. He was accompanied by his friend PW3. Both of them left the house of the deceased in the circumstances narrated above and clearly witnessed the second assault on the deceased. This Court had occasion to disapprove the attitude of casually branding material witnesses to crimes of violence as chance witnesses in the case of Sachchey Lal Tiwari Vs. State of U.P. [(2004) 11 SCC 410]. It was observed as follows:-

“Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence.”

31. In our opinion, these observations of this court are of tremendous relevance given the cultural ethos of this country. For the same reasons, we are unable to accept the submission of the learned senior counsel that the evidence of the PW3 ought to be rejected on the ground that they are partisan witnesses. Merely because PW2 and PW3 are sympathizers of BJP, their evidence cannot be brushed aside. At best, their evidence has to be carefully scrutinized. On such careful scrutiny of the evidence the trial court and the High Court have clearly and in our opinion rightly concluded that the evidence of these witnesses could not be discarded.

In a recent decision [Hari Bansh Lal v. Sahodar Prasad Mahto] the Supreme Court has declared that the law to this regard is settled that the Courts will not entertain a public interest litigation in a matter relating to service law. The only exception to this rule, the Court pointed out, was when the writ of 'quo warranto' was sought wherein the Courts may require the respondents to justify as to why they should not be removed from the post they occupied.

This decision, which succinctly explains the law to this aspect, notes inter alia as under;

6) About maintainability of the Public Interest Litigation in service matters except for a writ of quo warranto, there are series of decisions of this Court laying down the principles to be followed. It is not seriously contended that the matter in issue is not a service matter. In fact, such objection was not raised and agitated before the High Court. Even otherwise, in view of the fact that the appellant herein was initially appointed and served in the State Electricity Board as a Member in terms of Section 5(4) and from among the Members of the Board, considering the qualifications specified in sub-section (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, it is impermissible to claim that the issue cannot be agitated under service jurisprudence. We have already pointed out that the person who approached the High Court by way of a Public Interest Litigation is not a competitor or eligible to be considered as a Member or Chairman of the Board but according to him, he is a Vidyut Shramik Leader. Either before the High Court or in this Court, he has not placed any material or highlighted on what way he is suitable and eligible for that post.

7) In Dr. Duryodhan Sahu and Others vs. Jitendra Kumar Mishra and Others, (1998) 7 SCC 273, a three- Judge Bench of this Court held “if public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated”. In para 21, this Court reiterated as under:

“21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger.”

“16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations where even a minuscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.”

9) The same principles have been reiterated in the subsequent decisions, namely, Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363, Dattaraj Nathuji Thaware vs. State of Maharashtra and Others, (2005) 1 SCC 590 and Gurpal Singh vs. State of Punjab and Others, (2005) 5 SCC 136. The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters.

Writ of Quo Warranto

10) Writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat and Another vs. Gujarat Kishan Mazdoor Panchayat and Others, (2003) 4 SCC 712, (three-Judges Bench) Hon’ble S.B. Sinha, J. concurring with the majority view held:

“22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India 2, SCC para 74.)

23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana)”

“11. … …. The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision.”

“49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.”

It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.

25 Sep 2010

In what can be stated to be a measure of a welfare state, the Government of Delhi has recently notified the Delhi Rehabilitation Grant to Released Prisoners Rules, 2010 which seek to "provide rehabilitation grant to prisoners released from the Jail under Prison Welfare Services with the objective to enable them to have independent livelihood for their rehabilitation".

The notification provides that "Under these rules, rehabilitation grant shall be given to released prisoners on completion of their sentence and who have undergone training programme in one or more vocations/trades during their period of incarceration. The rehabilitation grant is for purchase of essential tools or equipments required for these learnt vocation/trade for their economic rehabilitation."

The grant, however, is subject to the satisfaction of certain conditions. These, in respect of the released prison, are that;

(1) he is a resident of Delhi;

(2) he has been under incarceration for the period of not less than 6 months and released from jail;

(3) he has attained the age of maturity as per law applicable to him as on date of submission of the application;

(4) he has participated in training programme for vocational and skill development during the period of incarceration and is capable of to start independent livelihood activity;

(5) his conduct and behaviour has been satisfactory during the period of incarceration;

(6) his family income from all sources does not exceed rupees sixty thousand per annum or such sum as may be notified by the Government, from time to time.

The applications for the grant shall be considered by an Assessment Committee which would be constituted in terms of the Rules where the quantum of grant is also specified, depending on certain factors. One can only hope that such rehabilitation measures would lead to reduction of crime.

In a recent decision [State of NCT of Delhi v. Rajiv Khurana] the Supreme Court has declared that it is mandatory to ensure that the criminal charges to be levelled against the accused are specified within the complaint itself and if this is not ensured that the accused cannot be compelled to face the criminal trial. The Court made a reference to its earlier decisions to state that the law to this regard was well settled and had to be scrupulously observed.

The law to this effect was explained by the Supreme Court in the following terms;

12. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Others (1983) 1 SCC 1, the Food Inspector, Municipal Corporation filed a complaint before the Metropolitan Magistrate against the respondents alleging commission of offence under Sections 5/7, Prevention of Food Adulteration Act as the sample of food article (Morton toffees) manufactured by the Company (respondent 5) had been found by the Public Analyst to be not of the prescribed standard. The Inspector alleged in the complaint that the accused/respondents were Manager (respondent 1) and Directors (respondent 2 to 4) of the Company (respondent 5) “and as such they were incharge of and responsible for the conduct of business of accused 2 (the Company) at the time of sampling”. Pursuant to the complaint the proceedings against the respondents were commenced. But the High Court quashed the proceedings against all the respondents under Section 482, Cr.P.C. on the ground that the complaint did not disclose any offence.

13. In State of Haryana v. Brij Lal Mittal & Others (1998) 5 SCC 343, it was held that the vicarious liability of a person for being prosecuted for an offence committed under the Act by a company arises if at the material time he was incharge of and was also responsible to the company for the conduct of its business. Simply because a person is a director of the company it does not necessarily mean that he fulfils both the above requirements so as to make him liable. Conversely, without being a director a person can be incharge of and responsible to the company for the conduct of its business. From the complaint in question we, however, find that except a bald statement that the respondents were directors of the manufacturers, there is no other allegation to indicate, even prima facie, that they were incharge of the company and also responsible to the company for the conduct of its business.

14. K.P.G. Nair v. Jindal Menthol India Ltd. (2001) 10 SCC 218 was a case of this court under the Negotiable Instruments Act, 1881 and it was found that the allegations in the complaint did not either in express words or with reference to the allegations contained therein make out a case that at the time of commission of the offence the appellant was in charge of and was responsible to the company for the conduct of its business. It was held that the requirements of Section 141 of the Negotiable Instruments Act, 1881 were not met and the complaint against the accused was quashed. The same view has been taken in Katta Sujatha (Smt.) v. Fertilizers & Chemicals Travancore Ltd. & Another (2002) 7 SCC 655.

15. The respondent placed reliance on the case of S.M.S. Pharmaceuticals Ltd. (supra), wherein this Court has held as under:

“19. In view of the above discussion, our answers to the questions posed in the reference are as under:

(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.

(b) The answer to the question posed in subpara (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.

(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under subsection (2) of Section 141.”

16. In Sabitha Ramamurthy and Another v. R.B.S. Channabasavaradhya (2006) 10 SCC 581 this court held there was absence of requisite averments in the complaint not containing any statement that the appellants were in charge of the business of the company at the material time. The statement of witness also did not specifically allege that the appellants were in charge of the business of the company. This Court held that requirement of section 141 of the Negotiable Instruments Act was not complied with and the complaint was liable to be quashed.

17. In K.K. Ahuja v. V.K. Vora and Another (2009) 10 SCC 48, this court observed that the averment in a complaint that an accused is a director and that he is in charge of and is responsible to the company for the conduct of the business of the company, duly affirmed in the sworn statement, may be sufficient for the purpose of issuing summons to him. But if the accused is not one of the persons who falls under the category of 'persons who are responsible to the company for the conduct of the business of the company', then merely by stating that 'he was in charge of the business of the company' or by stating that 'he was in charge of the day to day management of the company' or by stating that he was in charge of, and was responsible to the company for the conduct of the business of the company', he cannot be made vicariously liable under Section 141(1) of the Act.

18. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of company’s business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasise that in the case of non-Director officers, there is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable.

19. In K.K. Ahuja’s case (supra) the court summarized the position under section 141 of the Act as under:-

(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix “Managing” to the word “Director” makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company.

(ii) In the case of a Director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of Section 141.

(iii) In the case of a Director, secretary or manager [as defined in Section 2(24) of the Companies Act] or a person referred to in clauses (e) and (f) of Section 5 of the Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under Section 141(1) of the Act. No further averment would be necessary in the complaint, though some particulars will be desirable. They can also be made liable under Section 141(2) by making necessary averments relating to consent and connivance or negligence, in the complaint, to bring the matter under that subsection.

(iv) Other officers of a company cannot be made liable under sub-section (1) of Section 141. Other officers of a company can be made liable only under sub-section (2) of Section 141, by averring in the complaint their position and duties in the company and their role in regard to the issue and dishonour of the cheque, disclosing consent, connivance or negligence.

20. The court further observed that the trauma, harassment and hardship of the criminal proceedings in such cases may be more serious than the ultimate punishment, it is not proper to subject all and sundry to be impleaded as accused in a complaint against a company, even when the requirements of section 138 read with section 141 of the Act are not fulfilled.

21. The legal position which emerges from a series of judgments is clear and consistent that it is imperative to specifically aver in the complaint that the accused was in charge of and was responsible for the conduct of business of the company. Unless clear averments are specifically incorporated in the complaint, the respondent cannot be compelled to face the rigmarole of a criminal trial.

In a recent decision [D.V. Paul v.Manisha Lalwani] the Supreme Court has declared that it is inherent power of a court to extend time for ensuring performance of an act. Referring to Section 148 of the Code of Civil Procedure (which regulates the procedure of civil courts) the Supreme Court observed that the civil courts have the discretion to extend time to allow compliance. The Bench inter alia observed as under;

16. In so far as the first aspect is concerned Section 148 of the CPC, in our opinion, clearly reserves in favour of the Court the power to enlarge the time required for doing an act prescribed or allowed by the Code of Civil Procedure. Section 148 of the Code may at this stage be extracted:-

“148. Enlargement of time. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired.”

17. A plain reading of the above would show that when any period or time is granted by the Court for doing any act, the Court has the discretion from time to time to enlarge such period even if the time originally fixed or granted by the Court has expired. It is evident from the language employed in the provision that the power given to the Court is discretionary and intended to be exercised only to meet the ends of justice. Several decisions of this Court have explained the ambit and scope of the powers exercisable under Section 148 of the CPC. In Mahanth Ram Das v. Ganga Das, 1961 (3) SCR 763, this Court observed:

“Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on 13.7.1954, when it was actually heard. The order, though passed after the expiry of the time fixed by the original judgment, would have operated from 8.7.1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time but set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed.”

18. To the same effect is the decision of this Court in Chinnamarkathian v. Ayyavoo, 1982 (1) SCC 159, where this Court declared that the scope and exercise of the jurisdiction to grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. The Court also called in the principle of equity when circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the Court retains itself the jurisdiction to re-examine the alteration or modification which may necessitate extension of time. The following passage from the decision is apposite:

“It is well accepted principle statutorily recognized in Section 148 of the Code of Civil Procedure that where a period is fixed or granted by the Court for doing any act prescribed or allowed by the Code, the Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a Court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the Court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the Court retains to itself the jurisdiction to reexamine the alteration or modification of circumstances which may necessitate extension of time. If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys.”

20. In Salem Advocate Bar Association, T.N. v. Union of India, 2005 (6) SCC 344, this Court had an occasion to examine whether the restriction placed by the amendment of Section 148 on the power of the Court to grant extension of time beyond 30 days was reasonable. This Court held that a power that is inherent in the Court to pass orders that it considers necessary for meeting the ends of justice and preventing abuse of the process of the Court cannot be taken away by putting an upper limit on the period for which an extension can be granted. Extension beyond the maximum period of 30 days was accordingly held permissible in the following words:

“The amendment made in Section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case wheretime for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court.”

24 Sep 2010

The right to challenge the legality or validity of an order passed by a court or a tribunal before a higher forum is traditionally understood to be an appeal. Under common law appeal is a right conferred by a statute and does not exist unless so provided. Once provided, appeal is a matter of right (as compared to a petition) to the appellant so long as the relief claimed is within the four corners of the appellate provision. In a recent decision [James Joseph v. State of Kerala] the Supreme Court has culled out the the principles relating to appeals and explained them broadly in six bullets.

The Bench inter alia explained as under;

16. We may therefore formulate the following principles with reference to appeals :

(i) An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions.

(ii) The appellate jurisdiction can be limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statute conferring the appellate jurisdiction.

(iii) The width of jurisdiction or the limitations on jurisdiction with reference to an appeal, does not depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any, placed by the statute conferring the right of appeal.

(iv) If the Legislature’s intention is to limit the jurisdiction in an appeal, it may indicate such limits in the provision providing for appeal. Alternatively, it may expressly or impliedly incorporate the provisions of section 100 of the Code, into the provision for appeals.

(v) Generally statutory provisions for appeals against original orders or decrees (that is, first appeals) will not have any limitations and therefore rehearing on both law and fact is contemplated; and statutory provisions for appeals against appellate orders (that is, second appeals) will be restricted to questions of law. But such restriction is not on account of any legal principle that all second appeals should always be with reference to questions of law, but would depend upon the wording of the statute placing the restrictions upon the scope of second appeal.

(vi) Where the statute does not place any limitations or restrictions in regard to the scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts. If the Legislature enacts a self contained provision for second appeals, without any limitation upon the scope of the second appeal and excludes the possibility of reading the provision of section 100 of the Code, into such provision, then, it will not be permissible to read the limitations of section 100 of the Code into the special provision.

In a recent decision [Jameela v. Union of India] the Supreme Court has declared that it is not permissible for the Railways to deny compensation to the kin of those passenger who have fallen from the train. It was argued by the Department that the passenger was negligent in standing at the gate of the rail compartment in a moving train and thus there was no liability to pay compensation. The Bench, however, declared otherwise. Holding that it was not uncommon for the passenger to stand on the gates, the Supreme Court declared that unless there was intent to commit a criminal act, the liability to pay compensation could not be denied.

The Supreme Court inter alia observed as under;

5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under section 124 A of the Act.

6. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. Section 123, the first section of the Chapter, has the definition clauses. Clause (c) defines “untoward incident” which insofar as relevant for the present is as under:

“124A. Compensation on account of untoward incident. - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation - For the purposes of this section, "passenger" includes -
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.”

7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a “passenger” for the purpose of section 124A as clarified by the Explanation. It is now to be seen, that under section 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the section says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e).

8. Coming back to the case in hand, it is not the case of the Railway that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental.

9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124 A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour.

10. We are, therefore, constrained to interfere in the matter. The judgment and order of the High Court coming under appeal is set aside and the judgment and order of the Tribunal is restored. Since a period of more than 10 years has already elapsed from the date of the judgment of the Tribunal, the compensation money along with interest need not be kept in fixed deposits, but should be paid to the appellants in the ratio fixed by the Tribunal. The payment must be made within 2 months from today.

In a recently reported decision [Asha Kapoor v. Hari Om Sharda (2010) 171 DLT 743] the Delhi High Court has explained the underlying rule in civil litigation that averments made by one party unless specifically refuted would be deemed to be accepted. The principle which is now firmly embedded in as much as determination of civil suits, in terms of Order 8 of the Code of Civil Procedure, was explained by the High Court to be one of seminal importance.

The Bench inter alia observed as under;

15. Thus, as per written statement of petitioner it is apparent that, she has nowhere specifically denied that she has not acquired vacant and physical possession of premises no. C-91, IIIrd Floor, West, Gorakh Park Ext. Shahadra, Delhi. 16. Order VIII Rule 3, 4 and 5 of the Code of Civil Procedure (for short as 'Code') read as under;

“3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the ground alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

4. Evasive denial- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

5. Specific denial-[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability; Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the fact contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]”

17. The effect of Order 8 Rule 3 read along with rr 4 and 5 of the Code is that, defendant is bound to deal specifically with each allegation of fact not admitted by him; he must either deny or state definitely that the substance of each allegation is not admitted. The main allegations which form the foundation of the suit should be dealt with in that way and expressly denied. Facts not specifically dealt with will be taken to be admitted under Order 8 Rule 5 of the Code.

18. Order 8 Rule 5 of the Code is known as doctrine of non-traverse which means that where a material averment is passed over without specific denial, it is taken to be admitted. The rule says that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation should taken to be admitted.

“Thus, if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved.”

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

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